Simon & Son v. Johnson , 105 Ala. 344 ( 1894 )

McCLELLAN, J.

There was no evidence adduced below tending to show that Carlisle had any express authority to collect the debt involved in this action from Johnson, the defendant. No such authority is implied in the fact that he, plaintiffs’ travelling salesman, sold to the defendant the goods constituting the consideration of the debt. The original debt being admitted, the only other defense open to Johnson was that the plaintiff ratified his unauthorized payment to Carlisle, and this defense he set up and attempted to prove. We are of the opinion, however, that this attempt was entirely abortive, and that there is no evidence in the record tending to sustain it. On this state of case, no evidence of the payment by Johnson to Carlisle should have been received; and the court should have given the affirmative charge requested by the plaintiffs.

If it should be made to appear on another trial that the plaintiffs retained any money for the defendant out of Carlisle’s salary, this would be money had and received for Johnson, would belong to him, and he should be allowed to set off the amount of it against the claim of the plaintiffs.

Reversed and remanded.